fMRI-Based Lie Detection Excluded After Daubert Hearing

On May 31, 2010, U.S. Magistrate Judge Tu M. Pham of the Western District of Tennessee issued a 39 page report and recommendation on the prosecution’s motion to exclude evidence from an fMRI-based lie detection report by Cephos in the case of United States v. Semrau. The report came after a hearing on May 13-14 on the motion to exclude that featured testimony from Steve Laken, CEO of Cephos, for admission, and from Drs. Marc Raichle and Peter Imrey, against admission. This is technically a recommendation to the United States District Judge trying the case, who, because of a schedule conflict, was unable to hear the motion.

This opinion follows on the May 6 decision by a state trial court judge in Brooklyn to exclude another Cephos lie detection report in a civil case, Wilson v. Corestaff Services. That case did not involve a Daubert (or Frye) hearing or any expert testimony. The judge decided the lie detection evidence was not appropriate under New York’s version of the Frye test, noting that, in New York, “courts have advised that the threshold question under Frye in passing on the admissibility of expert’s testimony is whether the testimony is ‘within the ken of the typical juror’.” As credibility is a matter for the jury, the judge concluded that this kind of evidence was categorically excluded under Frye. He also noted that “even a cursory review of the scientific literature demonstrates that the plaintiff is unable to establish that the use of the fMRI test to determine truthfulness or deceit is accepted as reliable in the relevant scientific community.”